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Tuesday, July 12, 2016

Naomi LaChance — After Dallas Shootings, Police Arrest People for Criticizing Cops on Facebook and Twitter

The headline is a bit misleading. The charge is not criticizing but threatening. The legal question is when criticism becomes a threat under the law.

The policing of online threats is hardly a new issue. The Supreme Court set a precedent last year when it ruled that prosecutors pursuing a charge of communicating threats need to prove both that reasonable people would view the statement as a threat and that the intent was to threaten. Elonis v. United States dealt with a man who had posted violent rap lyrics about his estranged wife; the court reversed his conviction.

“After Dallas, threats may seem more threatening to police officers around the country,” said Daniel Medwed, professor of law at Northeastern University. “We might be seeing more arrests right now because the police will interpret that they have probable cause to make the arrest,” he said. “But that doesn’t mean in the end that this will result in convictions,” he added.

Schneier urged that law enforcement use caution.“This is complicated,” he said. “We don’t know how to do this — we’re doing it pretty badly and we should to it better.”

But he said it was a sign of the times. These days, almost all communications are recorded in some capacity. “This new world where things aren’t forgotten is going to be different,” Schneier said. “And you’re seeing one manifestation of it in casual comments that are resulting in arrest.”